Opinion
(July Term, 1817.)
A sci. fa. against heirs may be amended, after the plea of nul tiel record pleaded on payment of the costs up to the time of the amendment.
THIS was a scire facias against heirs, upon a judgment recovered before a magistrate against the administrator, wherein he had proved a full administration. The constable levied upon land, and returned the proceedings to the county court, whence this scire facias issued; but instead of reciting the judgment, it recited an execution for the same sum the judgment was recovered for the cause was tried in the county court, on the plea of nul tiel record, and on an appeal to the Superior Court it came on to be tried before DANIEL, J., who, upon motion, allowed the scire facias to be amended by reciting the judgment, and the defendants to withdraw their plea, which they refused to do. The cause was then tried and a judgment rendered for the plaintiff, from which the defendants appealed to this Court.
The questions submitted are, was the amendment properly allowed? If it was, ought not the plaintiff to have been taxed with costs?
Several decisions have taken place under the act of 1790, ch. 3, sec. 9, allowing amendments in a greater latitude than the present application. In Davis v. Evans, ante, 111, the declaration was amended after the allowance of a special demurrer. In McClure v. Burton, ante, 84, the names of two defendants, inserted in the writ but not parties to the deed declared on, were permitted to be struck out after the variance was pleaded. The act goes further than any of the British statutes, and the construction agreed upon by the Court and which they still think the proper one, is that anything may be amended at any time. This is expressly authorized by the last sentence of the act.
The amendment was properly allowed in this case, but the plaintiff must pay the costs up to the time when the order was made.
The other judges concurred. (579)
DANIEL, J., gave no opinion.
NOTE. — See note to Cowper v. Edwards, 2 N.C. 79; also a note to Simpson v. Crawford, 1 N.C. 55, and Rev. Stat., ch. 3.